Feasibility of preemption forfeiture through the sale of share before legal exercising in comparative jurisprudence and Iranian law

One of the conditions for establishing preemption in Islamic jurisprudence and civil law is the definite ownership of the preemptor during the transaction of the copartner. One of the important challenges in Islamic Jurisprudence and legal system is that simply transferring preemptor before legal actions can be a proof of preemption forfeiture. The purpose of this article is to examine the issue that if the preemptor is the owner of the share during the sale of contribution not in cash, but before applying preemption, he transfers his share to another, the interference of the preemptor's knowledge and ignorance in the transaction of the partner's share, in preemption or the loss of preemption can be effective. This issue has been disputed among Islamic jurists and Iranian jurists, and the civil law does not have an explicit text to determine the law text on this issue. Descriptive-analytic method and use of library sources have been used in this research. The result of the present work, after reviewing and criticizing the opinions of Imamiyyah jurists and Arba'ah denominations and jurists and their reasons, is that if the transfer of the preemptor's share is done by sale and at the same time as the sale of contribution not in cash, the entire share will be transferred to another, this act of turning away the right is considered as one of the examples of implicit cancellation and preemption is canceled. On the other hand, if the preemptor is ignorant of the sale of contribution not in cash or if a part of his contribution transferred to another, his preemption still remains.